Terms of Use

Last Updated: December 13, 2017 The World Wide Web site located at www.apella.com (the “Site”) for the Apella conference center (the “Conference Center”) is a copyrighted work belonging to Cluster Amenities No. 1, LLC (“Company”, “we,” “us” or “our”). We own and operate the Site. The Conference Center is owned by us and operated by Backal Management Group, LLC (the “Conference Center Operator”). We grant you the right to use the Site subject to these terms and conditions of use (these “Terms of Use”). PLEASE READ THESE TERMS OF USE CAREFULLY. THESE TERMS OF USE GOVERN THE USE OF THE SITE. BY ACCESSING THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE (ON BEHALF OF YOURSELF AND ANY BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, “YOU,” AND “YOUR”)), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF AND ANY ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SITE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SITE. PLEASE BE AWARE THAT SECTION 11 OF THESE TERMS REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES THAT ARISE UNDER THESE TERMS, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

LICENSE. The documents and other information and content available on the Site (the “Site Content”) are protected by copyright laws throughout the world. We grant you a limited license to reproduce portions of the Site Content for the sole purpose of reviewing the Site Content. All copyright and other proprietary notices on any Site Content must be retained on any copies. Any unauthorized reproduction or modification, distribution, or performance of any Site Content is strictly prohibited. We and our service providers reserve all rights not granted in these Terms of Use.

OWNERSHIP. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by us or our suppliers. Neither these Terms of Use (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1. We and our suppliers reserve all rights not granted in these Terms of Use. There are no implied licenses granted under these Terms of Use.

RESTRICTIONS. The rights granted to you in the Terms of Use are subject to the following restrictions: (a) you shall not frame or utilize framing techniques to enclose any of our trademarks, logos, or other content (including images, text, page layout or form); (b) you shall not use any metatags or other “hidden text” using our name or trademarks; (c) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of our Site or Site Content, except to the extent the
foregoing restrictions are expressly prohibited by applicable law; (d) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (e) you shall not access our Site in order to build a similar or competitive website, application or service; (f) except as expressly stated herein, no part of our Site or Site Content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in our Site or Site Content. Any future release, update or other addition to the Site shall be subject to the Terms of Use. We, our suppliers and our service providers reserve all rights not granted in the Terms of Use. Any unauthorized use of our Site or Site Content terminates the licenses we granted pursuant to the Terms of Use.

TRADEMARKS. The marks, “APELLA,” “ALEXANDRIA CENTER,” and “RIVERPARK,” in word and stylized formats, and all related graphics and logos appearing on our Site are owned by our affiliates. Other trademarks, service marks, and trade names that may appear on the Site are the property of their respective owners. The trademarks, service marks, and trade names appearing on our Site may not be used for any purpose other than your review of Site in accordance with Section 1 above.

MODIFICATION. We reserve the right, at any time, to modify the Site Content or to modify, suspend, or discontinue the Site or any part thereof with or without notice. You agree that we will not be liable to you or to any third party for any modification of the Site Content or modification, suspension, or discontinuance of the Site.

FEEDBACK. We will treat any ideas, documents, proposals, feedback or suggestions regarding the Site Content or Conference Center that you provide to us directly or which you provide to, and we receive from, the Conference Center Operator or any of our service providers (collectively, “Feedback”), as non-confidential and non-proprietary. Thus, in the absence of a written agreement with us to the contrary, you agree that you will not submit to us, the Conference Center Operator, or any of our service providers any feedback or suggestions regarding the Site Content or Conference Center that you consider to be confidential or proprietary. You hereby grant to us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Site and our services.

THIRD PARTY LINKS. The Site may contain links to other web sites operated by third parties. Such third party web sites are not under the Conference Center Operator’s or our control. Neither we nor the Conference Center Operator are responsible for the content of any third party web site or any link contained in any third party web site. We provide these links only as a convenience and neither we nor the Conference Center Operator review, approve, monitor,
endorse, warrant, or make any representations with respect to any third party web sites. Such third party web sites are subject to their own terms (including without limitation privacy terms). These Terms of Use do not apply to such third party web sites.

Riverpark Website. The Site contains links to the Riverpark web site located at www.riverparknyc.com (the “Riverpark Site”). The Riverpark Site is owned by us but is subject to its own terms (including without limitation privacy terms) available on the Riverpark Site. These Terms of Use do not apply to the Riverpark Site.

WARRANTY DISCLAIMER. THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND QUIET ENJOYMENT.

LIMITATION OF LIABILITY. IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR THE SITE OR SITE CONTENT, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS OF USE, THE SITE, AND THE SITE CONTENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED FIFTY DOLLARS ($50). OUR SERVICE PROVIDERS (INCLUDING WITHOUT LIMITATION THE CONFERENCE CENTER OPERATOR) WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THESE TERMS OF USE.

DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.

Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site, to any products sold or distributed through the Site, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify,; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.

Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: Corporation Service Company, 80 State Street, Albany, NY 12207 Phone Number: 1-800-927-9801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.

30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Corporation Service Company, 80 State Street, Albany, NY 12207 Phone Number: 1- 800-927-9801, within 30 days after first becoming subject to this Arbitration Agreement . Your notice must include your name and address, your Company username (if any), your email address, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

Severability. Except as provided in subsection 11.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.

Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at the following address: Corporate Secretary at 385 East Colorado Blvd., Suite #299, Pasadena, CA 91101.12. INDEMNIFICATION. You agree to indemnify and hold Company, its subsidiaries and affiliates and all of their respective officers, directors, employees, agents and representatives (collectively, the “Company Parties” and each a “Company Party”) harmless from and against any and all liabilities, damages, settlements, costs and expenses (including, but not limited to, attorneys’ fees) arising from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms; and/or (c) your violation of applicable laws or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify a Company Party, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

RELEASE. You hereby release the Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Company Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Company Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and
actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the website.

TERM AND TERMINATION. Subject to this Section, these Terms of Use will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site at any time for any reason at our sole discretion, including, but not limited to, for any use of the Site in violation of these Terms of Use. Upon termination of your rights under these Terms of Use, your right to access and use the Site will terminate immediately. We will not have any liability whatsoever to you for any termination of your rights under these Terms of Use. Even after your rights under these Terms of Use are terminated, the following provisions of these Terms will remain in effect: 2, 3, 4, 7, and 9-16.

AMENDMENT. We may, at any time, revise these Terms of Use by updating this posting. Unless otherwise noted, all changes will be effective when posted. By using the Site after any changes have been made, you agree to be bound by such changes. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages of the Site.

GENERAL PROVISIONS. If any provision of these Terms of Use is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms of Use will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. These Terms of Use and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any conflicts of laws principles that would require the application of the law of a different state. By using the Site, you hereby expressly consent to the personal jurisdiction and venue in the state and federal courts located in New York City for any lawsuit filed there against you related to these Terms of Use. These Terms of Use constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms of Use. The terms and conditions set forth in these Terms of Use shall be binding upon assignees. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

CONTACT US. If you have any questions regarding these Terms of Use, please contact us at the following e-mail address: PRIVACY@APELLA.COM.

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